Proving & Collecting All Damages


The most critical task involved in securing fair compensation for wrongful death is application of all evidence laws and the law of damages to ensure that all losses arising from the fatality are properly established and paid in full. Once all responsible parties are identified, and once all applicable insurance policies are located and brought in to maximize available coverage/funds, the goal is to secure the highest possible settlement or verdict for surviving family members.

The damages that are recoverable in a lawsuit for wrongful death are specified in the Wrongful Death Act. These include:

  • Expenses for care, treatment and hospitalization related to the injury that resulted in death;
  • Compensation for pain and suffering of the decedent;
  • The reasonable funeral expenses of the decedent;
  • The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected:
    • Net income of the decedent,
    • Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered;
    • Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
  • Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had he survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in N.C.G.S. 1D-5.

In the following paragraphs, we explore important issues pertaining to each category of collectable loss:

Collecting All Medical Costs:

Evidence proving the decedent’s medical expenses and funeral expenses will be straightforward and requires only the tender of the specific invoices. North Carolina evidence law was revised several years ago and these revisions dramatically reduce the amount of medical charges that can be claimed in most personal injury cases. Under the new law, evidence of medical expenses is limited to the actual amount paid, regardless of source, plus any amount that remains due to fully satisfy the bill. This law only limits the rights of victims with health insurance, and the effect is to reduce the amount of bills admitted for payment. If the health insurance carrier is entitled to discounts or “adjustments” which reduce the total bill, then this reduced amount (or amount “actually paid”) is the only amount that can be recovered in a North Carolina wrongful death case. If the decedent had no health insurance, the total bill can be presented for payment. Obviously, this would increase the total value of the wrongful death claim. We hope to see constitutional challenge of this law because victims who had health insurance are clearly denied equal protection under the current law.

Collecting for Pain & Suffering:

The N.C. Wrongful Death Act allows the victim’s family to collect payment for the pain and suffering of the decedent. To collect for pain and suffering in a wrongful death case, the Plaintiff must prove that the victim was aware or conscious of their pain and suffering. Attorneys typically rely on medical experts in cases of rapid death to show that, even if for merely a few seconds, the decedent was fearful and aware of physical pain and injury. In most cases, if the victim evidenced obvious pain and difficulty before death, or if the victim lingers with their injuries and struggles for life before passing, it is easy to show that conscious pain and suffering occurred. Generally, if there is no time interval between injury and death, as when the victim is instantly killed with no awareness of the circumstance, there can be no recovery of damages for pain and suffering. Evidence of pain and suffering can be established through medical records, testimony of witnesses who observed or heard the defendant, and from the dying declarations of the victim.

Collecting for Lost Income:

The N.C. Wrongful Death Act allows claimants to collect the lost “net income” of the decedent. The goal here is to collect all lost wages that would have been earned by the victim over the course of an uninterrupted, normal life. Lawyers refer to this as a “lifetime earnings claim”. In money value, this means that the surviving family can collect the decedent’s total lost future income from all sources, reduced by the amount that would be due for taxes. The total lifetime income stream is first calculated, and then this amount must be reduced to the present monetary value.

The sources of recoverable lost income include salary, fringe benefits, commissions, retirement accounts, and all other foreseeable income that the decedent would have earned. Only those amounts that would have gone to or been available for the beneficiaries, but for the wrongful death, are recoverable. The relevant factors on which these damage calculations are based include the decedent’s life expectancy, health and habits, employment, education, training, career path and earning history.

The surviving family members or their attorney should alwayswork closely with vocational rehabilitation experts and economic experts to show the likely earning capacity of the victim, and to show a jury the full amount that the family will miss in earnings due to the fatal accident. The vocational expert will investigate trends in earnings and project the career path and future earnings that the decedent likely would have earned over their lifetime. The economic expert will refine those figures, put a reliable dollar figure on the total future income stream, and then reduce the total of all lost income to a single lump sum stated in “present monetary value”. This figure is the exact sum that would have to be placed in an interest-bearing bank account today to provide the family with the same income stream they would have enjoyed if the victim had not been fatally injured.

Collecting for Lost Services, Protection & Care:

The family of a fatal accident victim can also collect compensation for the value of all “services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered.” This subcategory of damages provides additional money, beyond lost income, for the services that the victim could have performed if he or she had survived. Typical damages in this category include the value of tasks involved in maintaining the household such as cooking, cleaning, caring for children, yard maintenance, household chores and maintenance, and performing general errands. Since outsiders can be employed to fill these roles, these services have a monetary value that can be calculated and reduced to present value.

Proof of the full value of all lost services as reduced to present monetary value can be complex. In general, it is advisable to employ an expert economist to assist in the itemization and calculation of these damages. Insurance companies always question damage claims, and the involvement of an expert will confirm the true value of all damages and your readiness to proceed through trial if necessary to secure full and fair compensation.

Collecting for Lost Companionship & Relationship:

The N.C. Wrongful Death Act also allows the victim’s family to collect fair compensation for the “[s]ociety, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.” Because the lost relationship and companionship is intangible, these claims are very difficult to quantify. Trial attorneys agree that jurors are often quite sympathetic in death cases, and they are often moved toward generosity when they hear of the relationships that are lost due to fatal accidents. However, valuing this portion of the case is difficult as many people disagree on how to value a lost life. Loss of society and companionship is intangible, and the Wrongful Death Act here seeks to compensate the surviving family members for the sense of loss, heartache and anguish resulting from the fatality. Evidence of a close and loving family with details of the relationship and good times enjoyed is relevant and admissible in trial.

In the settlement setting, it is best to put together a presentation that illuminates the decedent’s persona and character, and that clearly shows how much the decedent will be missed by all surviving family members. A proper settlement demand brochure should include photographs, family videos, letters and statements of friends and family members, hobbies shared and anything the decedent created, and any credentials that show the decedent’s interests, accomplishments and character. Even in distant families, efforts should be made to show how the decedent will be missed, and to prove the weight and value of the loss of life. These materials will all be relevant and admissible at trial if the case cannot be resolved through private compromise.

Collecting Punitive Damages:

The Wrongful Death Act allows the recovery of punitive damages if the victim could have recovered a punitive award if he or she had survived. Unlike all other elements of the wrongful death claim, the Plaintiff’s burden on the level of the defendant’s wrongful conduct is proof by “clear and convincing evidence”. The conduct involved must be severely wrongful. Therefore, it must be clear and convincing to a jury that the defendant’s conduct that caused the fatal injury was malicious, willful or wanton, or grossly negligent. Under N.C. law, these terms are defined as follows:

  • Malicious Act – an act is malicious when the defendant was motivated by personal ill will or spite.
  • Willful Act – an act is willful if the defendant intentionally fails to carry out some duty imposed by law or contract which is necessary to protect the safety of the person or property to which the duty is owed.
  • Wanton Conduct – an act is wanton if the defendant acts in conscious or reckless disregard for the rights and safety of others.
  • Gross Negligence – an act is grossly negligent when the defendant lacks even slight care, when he shows indifference to the rights and welfare of others, or when his negligence is of an aggravated character

For further information about how a punitive damage claim is valued and presented, see the Punitive Damage Claims discussion which begins on page 211. The same approach taken in a punitive damage claim involving non-fatal injury applies in a punitive damage claim that is attached to a wrongful death action. The only difference is that, in fatal accident cases, gross negligence (which is a lower level of wrongdoing than intentional, malicious, or willful and wanton conduct) is sufficient to support a claim for punitive damages when the grossly negligent conduct results in fatality.

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